Main menu

Freedom

Georges Benrekassa

[Translator’s note: Liberté can mean
‘liberty’ or ‘freedom’ in English, depending on context. Since ‘liberty’ usually
applies to states rather than individuals, and the emphasis in Montesquieu is
usually on how people experience freedom (both politically and as free will),
liberté has been translated throughout this article
as ‘freedom’.]

1To what degree can we consider that there is in Montesquieu a unified concept of
civil freedom, political freedom, “philosophical freedom” (the exercise of an
autonomous will)? Did he want to propose one or make it an object of research?
We know how in the Défense de L’Esprit des lois he was to
reject and challenge the accusation of “Spinozist” fatalism, as a diversified
and possibly hierarchized conception of the order of things, between fixed laws
of movement subject to rules as rigid as the “fatality of atheists” and faculty
of intelligent beings to self-determination. That implies an examination of his
work beginning with the primary questions, even if for him they were only a
starting point.

2Montesquieu never consecrated this “philosophical freedom” nor did he dismiss it
as primordial value. He knew very well the difficulty of reconciling its
effective existence with a form of global first philosophy. Usbek (LP 67 [69]) was repeating a traditional criticism of the
Leibnizian system, and risking bold reasoning on the soul “worker of its own
determination”, and its improbable conciliation with divine prescience. For there is at least a doubt before the problem of
God’s foreknowledge of things that belong to the “determination of free causes”.
He had to more or less bracket the matter… It remains none the less that a
“philosophical freedom” would always constitute for Montesquieu a limit that he
would always have to take into account, and that in certain extreme cases the
original experience which it represents would be inseparable from our social
existence. One of the paradoxes of political freedom would be that we can
appreciate its existence only insofar as it resembles philosophical freedom (EL, XI, 2 and XII, 2), even if “philosophical freedom”
sometimes seems to manifest itself only by a simple belief of individuals in
their autonomy, and if the conviction of enjoying can assume quite diverse
forms. In the Pensées (nos. 174, 175, 176), Montesquieu
happened to speak of civil freedom in connection with slavery in Rome – of the
enjoyment of a status of free person that protects us from servitude – in terms
that made it a sort of implication of a principle of absolute freedom, having
the value of a primordial existential choice. In L’Esprit des
lois, where he returns to these texts while suppressing their most
radical part, and the praise of Spartacus, and where he must analyze a “right to
slavery”– its “rationality” – he stops short of this principle, which does not
mean that he denies it. What he does in the long run (XV, 8) is to see how the
surpassing of a “natural servitude” could, thanks to mechanization, could be
inscribed in the nature of things.

3It is out of the question, in any event, that the reference to primary
philosophical freedom could lead directly to realizable liberating ambitions. It
is true that natural freedom is “the object of the civil order of savages” (XI,
5). But “natural freedom” in terms of law is but the ability to dispose of one’s
person and property (which is like a rather idyllic vision of “civil order of
savages”.) Since it is the manifestation of a genuinely free will, it is
impossible to neglect another pole of Montesquieu’s thought, rather hidden or at
least discrete, that refers the freedom of the subject in the political sphere
back to a profitable artifice, which depicts even the conviction of a “true”
political freedom as relative ignorance and happy illusion. We see one
comparison return insistently in the Pensées (nos. 423,
874, 943: “A free government can be compared to a great net in which the fish
roam about and do not think they are caught” (“Un gouvernement libre peut être
comparé à un grand filet dans lequel les poissons se promènent et ne se croient
pas pris”, no. 874; article crossed out on the manuscript). In another passage
(no. 943), two metaphors are combined in rather disquieting fashion: “An Ancient
compared laws to spider webs which, being only strong enough to stop flies, are
broken by birds. I would compare good laws to these great nets in which fish are
caught, but think they are free, and the bad ones to news in which they are held
so closely that they sense right away they are caught” (“Un ancien a comparé les
lois à ces toiles d’araignée qui, n’ayant que la force d’arrêter les mouches,
sont rompues par les oiseaux. Pour moi je comparerais les bonnes lois à ces
grands filets dans lesquels les poissons sont pris, mais se croient libres, et
les mauvaises à ces filets dans lesquels ils sont si serrés que d’abord ils se
sentent pris”). One could say that concerns only a relative political freedom
arranged by the laws. That cannot be thought wholly convincing. If we place
these aphorisms in relation with the developments on the freedom of the peoples
of the North, who created the instruments of the struggle against servitude
(XVII, 5) and even with those on the exercise of a “feudal freedom”, what
appears, even if that too is akin to conceptions that can be associated with
political and ideologically limited choices, aristocratic and close to the
“Germanists”, is the recurrence of the idea of a privileged vocation not of
liberators, but of introducers of a categorical refusal of any principle of
subservience… Will we never obtain anything but devalued freedom?

4Thus we see that it would be misleading at the least to pretend to survey
Montesquieu’s thought as a sort of edifice devoted to political freedom, a
freedom – our freedom – which would recuperate the merits and dignity of
philosophical freedom, even if it is thinkable only through that connection. But
it remains nonetheless that an imprint, or better, something like a principle of
fecundity of the paradoxical original situation, at the very basis of any
properly political reflection, whatever the relativity of things. At the heart
of what simultaneously founds and reveals, at the moment of Romans (in chapters VIII and IX first) a free community – the
republican “model” – we see the outline of the conscience of dependency of all
freedoms with relation to what passes for threatening them with a shipwreck.
Freedom exists – can be achieved – up to a point only in function of a breaking
of order, even if it is conceivable ultimately only in obedience to the laws,
and moreover, it can be obtained only by making a commotion (Pensées, no. 577). Whence this magnificent aphorism: “Every time we
see everyone tranquil in a state that calls itself a republic, we can be sure
there is no freedom in it” (“Toutes les fois qu’on verra tout le monde
tranquille dans un État qui se donne le nom de république, on peut être assuré
que la liberté n’y est pas”, Romans, IX). In a sense,
that leads to the necessity of multiple parties. But that goes well beyond this
mediocrity.

5It is nonetheless necessary to put some emphasis on the center. Montesquieu very
methodically founds a system of freedom, but one inseparable from a thought
requiring limits to the notion of political freedom in that very system. The
words “system concerning freedom” are his own, in a passage of the Pensées (no. 907) where he goes down the list of all the
major works of political philosophy with which a confrontation is necessary. But
in line with his Roman itinerary, a direction of theoretical order is already
set: “A free government, in other words one that is always agitated, cannot be
maintained if not by its own laws that are capable of correcting it” (“Un
gouvernement libre, c'est-à-dire toujours agité, ne saurait se maintenir s’il
n’est par ses propres lois capable de correction”, Romans, VIII). If we refer back to the principles of those that have tried
to define political freedom before him, the difference of viewpoint and
orientation is quickly apparent. Locke writes, in chapter IV of the second Treatise of Government: “Freedom of men under government
is having a standing rule to live by, common to everyone in the society in
question, and made by the legislative power that has been set up in it; a
liberty to follow one’s own will in anything that isn’t forbidden by the rule
[…].” (“La liberté des hommes soumis à un gouvernement consiste à posséder une
règle permanente à laquelle se conformer, une règle commune à tous les membres
de la société et instituée par le pouvoir législatif qui s’y trouve établi.
C’est la liberté de suivre ma propre volonté toutes les fois que cette règle
garde le silence […]”, Traité du gouvernement civil, p.
88). Montesquieu is in complete agreement with these principles. Political
freedom is first “doing what one ought to wish to do” and “not being forced to
do what one ought not to wish”; and with reference to the institutions and what
founds society, “freedom is the right to do whatever the laws allow; and if a
citizen could do what they forbid, there would be no more freedom because the
others would have that same power” (“la liberté est le droit de faire tout ce
que les lois permettent; et si un citoyen pouvait faire ce qu’elles défendent,
il n’aurait plus de liberté parce que les autres auraient tout de même ce
pouvoir”, XI, 3). However, for him the question which remains entire is what
“correction” a “government” is capable of that lived off the antagonisms that
animate it.

6Therein becomes apparent the originality of the “system”. There is no sufficient
condition to institute or guarantee political freedom, and there is no way to
set up a rigorously defined catalogue of the necessary conditions. One could not
include obligatorily any of the conditions that seemed indispensable to one
people or another: the right to insurrection or the possibility of remaining
faithful to one’s customs, the ability to elect a chief and, principally,
freedom as the proper character of democracies, according to the most widespread
prejudice. (“The power of the people has been confused with freedom of the
people” [“on a confondu le pouvoir du peuple avec la liberté du peuple”], XI,
2). Political freedom would have to be conceived on two bases. First, it is
impossible to link freedom necessarily and by principle to a political and
social system, in the sense that its organization – its nature – would imply
freedom. Next, there is no need for any “constitutionalist” illusion: “It can
happen that the constitution is free, and the citizen will not. The citizen can
be free and the constitution not be” (“Il pourra arriver que la constitution
sera libre, et que le citoyen ne le sera point. Le citoyen pourra être libre, et
la constitution ne l’être pas”, XII, 1). Better yet: “moderation”, a balance of
powers and social forces, does not guarantee anything for certain. There is a
necessary connection between moderation and freedom, but that connection is
alone insufficient. Freedom exists in modern states “only if power is not
abused” (XI, 4). Fragments nos. 884-889 (“On political freedom”) in vol. II of
the Pensées, a possible remnant of the project for a
separate work devoted to the question, confirm these principles very early.

7How then to think about this political freedom? It is situated between two poles,
which concern society as a whole and not at first individuals, a positive pole,
general obedience of the laws, and a negative pole,
the calculated obstacles placed in the way “by the disposition of things” of the
abuse of power. Hence two conjoint modes of its existence: the relation to the
constitution (book XI) and the relation with the citizen (XII), and especially
what links the two: it is in that disposition of the fundamental laws (XI) that
we can possibly find the best support for assuring the citizen of his “security”
by protecting him as far as possible from all the forms of incrimination which
power can use against him (XII). But there again, there can be no purely
institutional problematic. The disposition of the fundamental laws is desirable
for political freedom. “But in the relation to the citizen, mores and manners,
received examples can give rise to it; and certain civil laws favor it” (“Mais
dans le rapport avec le citoyen, des mœurs des manières, des exemples reçus
peuvent la faire naître, et de certaines lois civiles la favoriser […]”, XII,
1). “In monarchies there are points and moments of freedom” (“Il y a dans les
monarchies des points et des moments de liberté”, Pensées, no. 751).

8If freedom remains a fundamental value, and is “that good that makes one enjoy
the other things” (Pensées, no. 1574), perhaps it is only
the fruit of a complex cultural process subject to many risks, to arrive where a
state in which “man does no violence to man”, even by means of the law. It is
not even certain that it can be the object of a universal claim: “Freedom itself
has appeared unbearable to peoples who were not used to enjoying it” (“La
liberté même a paru insupportable à des peuples qui n’étaient accoutumés à en
jouir”, XIX, 2). Three considerations, three conditions are at the center of its
possibility of appearance. Chapter 27 of book XIX exposes at length the social
and historical conditions of English freedom, whether they are modes of social
life, effects of the constitution on the mores, of the adaptation or even the
creation of a society to the conditions of political freedom. Inversely, forms
of sociability exclude the appearance of political freedom, principally those
that join in a single code and a single discipline all the aspects of social
life, laws, mores, and manners (XIX, 16-17). Finally, well beyond the separation
of powers, what guarantees the citizen’s freedom as a man derives from the
progress of “knowledge”, which is not an effect of the benevolence of power or
simple speculation:
“Knowledge which one has acquired in some countries and
which one will acquire in others, about the surest rules one can have in
criminal judgments, interest humankind more than anything in the world. It is
only on the practice of that knowledge that freedom can be founded […]” (“Les
connaissances que l’on a acquises dans quelque pays et que l’on acquerra dans
d’autres, sur les règles les plus sûres que l’on puisse tenir dans les jugements
criminels, intéressent le genre humain plus qu’aucune chose qu’il y ait au
monde. Ce n’est que sur la pratique de ces connaissances que la liberté peut
être fondée […]”, XII, 1).